How do we run a governor exclusion panel?

If a headteacher has excluded a pupil there are some circumstances where school governors must set up an exclusion panel to consider whether the decision was correct.

For example, any decision to permanently exclude a pupil must be considered by the governing body.

The exclusion panel is often known as a governors’ disciplinary committee (GDC) because pupils can only be excluded for disciplinary reasons. It may also be known as a PEX panel, for Permanent Exclusion. The decision of the panel will be based on whether the child has broken the school’s behaviour policy.

In maintained schools this exclusion panel can be made up of a committee of no less than three governors. In academies it can consist of less than three governors if your articles of association allow it.

The governor panel must meet within 15 school days of receiving notice of the exclusion if any of the following apply:

the pupil has been permanently excluded (also known as being expelled)
it is a fixed term exclusion which means that the pupil has now been excluded for more than 15 days in a single term
it is going to mean a pupil misses a public exam or national curriculum test.

In a case where a pupil has been excluded for five days or fewer in total in a term, governors must listen to the views of parents but cannot overturn the headteacher’s decision.

If the pupil will be excluded for more than five days but less than 15 in a term, the panel must sit within 50 school days, but only if the parent has asked to be heard.

If a pupil is going to miss an exam or test governors must try to sit before that test; in maintained schools the chair or vice-chair of governors can hear the case alone if no other governors are available at short notice.

However, if it is impossible for governors to meet within these timeframes their decision is still considered valid, as long as they have made “reasonable” efforts to convene the panel within the limits.

The legal duties of governing bodies are set out in the School Discipline Pupil Exclusion and Reviews (England) Regulations 2012.

Who can attend a governor exclusion panel?

Statutory guidance from the DfE says that the following people must be invited to the governor panel:

the parents
a friend or representative of the parents if they would like one to attend
the headteacher
a person from the local authority if it is a maintained school.

What happens if parents fail to attend?

The panel can go ahead if parents are absent. However, governors must have made “reasonable endeavours” beforehand to find a date and time that was convenient for parents to attend, within the time limits set out above.

Note that the decision of a governor panel is not invalid if it is made outside of the time limits, but governors must always try to stick to them.

“The governing board must make reasonable endeavours to arrange the meeting for a date and time that is convenient to all parties, but in compliance with the relevant statutory time limits.

“However, its decision will not be invalid simply on the
grounds that it was not made within these time limits.”
Exclusion from Maintained Schools, Academies and Pupil Referral Units in England

Is there a set agenda for the panel?

The DfE do not provide an example agenda for the panel, but many LAs produce their own suggested agenda. If yours does not I have provided one on my templates and letters page.

LA exclusion agendas usually follow the same formula. The headteacher is asked to explain why the pupil was excluded and takes questions from those present. The parent and pupil can then explain their own case and take questions.

The LA representative comments on the case and takes questions. Once all questions have been heard the headteacher and parent/pupil summarise their views. Finally, everyone except the governors and clerk leave the room to allow governors to make their decision.

How should governors prepare for an exclusion panel?

Evidence should be gathered about the pupil’s behaviour and circumstances. This will include written witness statements and information held by the school such as details of an education and health care plan (EHCP) and the special educational needs of the child.

Depending on the reason for exclusion it might also include items such as attendance figures, referrals to outside agencies or a behaviour log. Include any letters sent to parents and relevant policies such as the behaviour policy.

This evidence, plus a list of those attending the panel, should be sent to everyone invited at least five school days before the panel will sit. That is the absolute minimum time acceptable, so in reality evidence should be sent sooner than this.

If a child under 18 is invited to be a witness their parents should be invited as well and asked for their consent. Governors should also make reasonable adjustments for any disability or language barrier.

They should think about how best to encourage the excluded pupil to contribute to the panel, bearing in mind their age, or how they could submit their views if they cannot attend in person. The clerk should be invited to the meeting to take minutes.

Should governors receive training on exclusions?

There is no requirement for governors to receive training before they sit on a governor exclusion panel, but it would be good practice for governors to be trained.

(Note however that members of an independent review panel, the next stage of appeal that is described later in this article, must receive training.)

Can staff governors sit on exclusion panels?

Although there is no ban on staff governors sitting on exclusion panels it would be very difficult for them to take part because panels must be unbiased, impartial and fair.

Any member of staff is likely to have had at least some contact with the child or heard other employees discuss them and so cannot be unbiased. They already know some information about the case and could have expressed their opinion already.

Similarly, if a parent governor knows the child in question or knows they are friends with their own child they should not sit on the panel. Governors should also not be involved if they have discussed the child’s situation with the headteacher prior to his or her decision to exclude.

“The decision to exclude a pupil must be lawful, reasonable and fair.”
Exclusion from Maintained Schools, Academies and Pupil Referral Units in England

Can parents see minutes of the governor panel?

Yes. Statutory guidance explains that “all parties” should have access to minutes of the governor exclusion panel.

“The governing board should ensure that clear minutes are taken of the meeting as a record of the evidence that was considered by the governing board. These minutes should be made available to all parties on request.“
Exclusion from Maintained Schools, Academies and Pupil Referral Units in England

Making A Decision

Everyone except the governor panel members and the clerk should be asked to leave the meeting before a decision is made. The panel should decide whether the exclusion was correct, using the following advice from statutory guidance.

“The governing board should consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking account of the headteacher’s legal duties and any evidence that was presented.”
Exclusion from Maintained Schools, Academies and Pupil Referral Units in England

The panel must think about the interests and circumstances of the child but also the interests of the other pupils and the staff working at the school. If governors are not sure whether something is true or not they only need to believe that on balance it is probably true; they do not need be certain if there is enough evidence to strongly suspect that the evidence is true.

“When establishing the facts in relation to an exclusion the governing board must apply the civil standard of proof; ie: ‘on the balance of probabilities’ (it is more likely than not that a fact is true) rather than the criminal standard of ‘beyond reasonable doubt’.”
Exclusion from Maintained Schools, Academies and Pupil Referral Units in England

The governor panel can only make one of two decisions.

Uphold the original exclusion.
Cancel the exclusion and reinstate the child, allowing the child to return to school immediately or at a set date in the future.

The decision and an explanation of the panel’s reasoning should be sent in writing to the parents, headteacher and the local authority. This should be a detailed letter that allows everyone involved to understand why the decision has been made; it should not simply state the decision itself.

Can parents appeal the governors’ decision?

If the child has been given a short, fixed-period exclusion then the governors’ decision is final. However, if a child has been permanently excluded and the governor panel have agreed with the original decision of the headteacher to exclude, the parents can appeal and the decision will be looked at by a second panel.

This second panel is called an independent review panel (IRP) and is arranged by the local authority or the academy trust, not the school itself.

Can the headteacher appeal the governors’ decision?

No. The parents are the only people who can ask for an appeal. If governors have decided to reinstate a pupil the headteacher will presumably disagree, unless further information has come to light during the panel, but the head cannot request an appeal.

Holding An Independent Review Panel

The IRP will be formed of either three or five people, made up of headteachers (or former headteachers), governors and a lay person to chair the panel (someone who does not work at any school).

The panel members must not be governors or employees from the original school. They must all have received training on how to run an independent review panel and the law around exclusions.

Governors from the original school have the right to be represented, so the chair will usually attend to explain their decision and defend it.

The independent review panel can either:

agree with the governors’ decision
recommend that the governors reconsider their decision, or
“quash” the decision (reject it because it is invalid) and direct governors to reconsider. The decision will only be quashed if there was a flaw in the way the original panel came to their conclusions.

Following the IRP the panel must write to “all parties” to explain their decision and the reasoning behind it.

If the independent review panel has recommended or directed that a decision must be reconsidered, governors must hold another meeting to review their original decision within 10 school days. If their original decision was quashed and governors still refuse to reinstate the child the school can be fined £4000.

Governors can find further information in statutory guidance on exclusions from the DfE which covers all state-funded schools.

What happens if parents do not attend the IRP?

The IRP can go ahead if the parents are absent. The LA or academy trust arranging the review must take “reasonable steps” to find a date that all parties can attend, but once parents have asked for the review it must begin within 15 school days.

“The local authority/academy trust must take reasonable steps to identify a date for the review that all parties, and any SEN expert appointed to give advice in person, are able to attend.

“However, the review must begin within 15 school days of the day on which the parent’s application for a review was made (panels have the power to adjourn a hearing if required).”
Exclusion from Maintained Schools, Academies and Pupil Referral Units in England

Can the same governors sit on the reconsideration panel?

Statutory guidance does not ban governors who sat on the original governor panel from also sitting on the reconsideration panel.

However, the National Governance Association recommends that governors involved in the original decision do not form the reconsideration panel. This will make sure that the case is being considered by fresh governors who have not already formed a view.

Do parents have a right to see minutes of the reconsideration meeting?

Yes. If an independent review panel has told governors to reconsider their decision they should make minutes of the reconsideration meeting available to “all parties”.